In 2004, California was about to have the
strongest anti-spam law in the country (Business & Professions Code § 17529), until it was largely
preempted by the federal SURE-GO-AHEAD-YOU-CAN-SPAM Act. It is
generally acknowledged that CAN-SPAM was a failure; the amount of spam has
increased dramatically since then... now comprising 90% of all email. CAN-SPAM even made much
spam legal, as long as it meets certain conditions.

Importantly, the bill only targeted false &
deceptive commercial email... and last time I checked, there is no
First Amendment right to false & deceptive commercial speech.
Companies that advertise in truthful email will not be impacted by
the new bill. So you have to wonder, Who is
going to oppose a bill that only targets falsity & deception?

Answer: the
American Electronics Association opposed the bill initially,
which was odd, because reducing false & deceptive spam – in addition
to benefitting consumers – will also benefit AEA member
companies, as ISPs, as recipients of commercial email, and as
legitimate advertisers. Although the AEA publicly promised to
work with us to strengthen current law, it turns out their problem
is actually with current law, in particular, the fact that the law
holds the advertisers strictly liable for advertising in false &
deceptive spam sent by their affiliates. In other words, the
AEA really wanted to take California law backwards. But the fact is,
advertisers are [unjustly] enriched by false & deceptive spam, so
they should be held liable.
The AEA eventually agreed to several improvements to current law
(clarifying venue, specifying statute of limitations, and adding
standing for district/city attorneys), but objected to the real
substantive proposals (adding injunctive power, specifying that
false domain registrations violate the law, prohibiting deliberate
misspellings in subject lines and sending spam from multiple domain
names to deceive spam filters) and is trying to weaken the
attorneys'-fees-for-prevailing-plaintiff provision, which is common
for consumer protection statutes. However, when those
provisions were removed, the AEA took a neutral stance on the bill.

The Legislature passed AB 2950 in August 2008, albeit in a
somewhat weakened version than what we had originally intended.
Read the final enrolled version in
html or
pdf.

Unfortunately, Gov. Schwarzenegger
vetoed
AB 2950. Recall, due to federal preemption, California can
only regulate false & deceptive spam. So what possible
grounds could there be to veto the bill? What societal benefit
can there possibly be for false & deceptive spam? Let's read
along:

While this may be true, it's not really relevant.
We're dealing with spam email in general, not
limited to wireless devices. The operative federal
regulations are included in the CAN-SPAM Act of 2003
(effective date: January 1, 2004), which is enforced by
the Federal Trade Commission.

In addition, California's anti-spam laws are among
the toughest in the nation.

True. But we could have made them even tougher.
Why not be tough, against false & deceptive spam?

Given these circumstances, AB 2950 appears to be
unnecessary

Since the "FCC" sentence above is irrelevant, this
conclusion does not logically follow. Nor is it
accurate, because the volume of spam has increased
despite the California and federal law. What we
need is stronger laws and more enforcement.

and may possibly invite excessive litigation

Not necessary true. AB 2950 could have reduced
litigation by clarifying some of the ambiguities of the
current law. Besides, no litigation over
false & deceptive email is "excessive" litigation.

for a nuisance that does not result in any damages or
losses.

Now this is just flat-out wrong. The California
Legislature found back in 2003 that spam would cost $10
billion, and estimated that $1.2 billion of that would
be felt in California. Numerous other authorities
have documented that spam does have real costs

For these reasons I am unable to sign this bill.

Sincerely,
Arnold Schwarzenegger

Since all of the premises are flawed, the decision makes
no sense. Sounds to me like the lobbyists got to
him.

Now that we know our enemy a little better, and the misrepresentations of fact and
law that they are willing to tell the Legislature and the Governor,
we just might give it another shot. Take that, spammer.